New cases taken — and not

Posted Tue, September 27th, 2011 10:32 am by Lyle Denniston

Picking very selectively among hundreds of new cases brought to it since its last Term, the Supreme Court on Tuesday granted review of seven cases mainly of interest to lawyers in highly specialized fields, and left untouched — but perhaps only for the time being — some major new controversies of wide public interest. A post with more details on the granted cases is here. In the first orders for the Term that formally opens next Monday, the Court accepted two tests of the rights of foreign nationals who have been admitted to live in the U.S. as lawful permanent residents, a significant new controversy over the time limit on the federal tax collector’s attempt to pursue added revenue from a taxpayer, and a test of the legal immunity of private attorneys working temporarily for the government. Most if not all of the new cases will be argued in the January sitting.

Because a huge pile of cases reaches the Justices at their first Conference of a new Term, the grants initially announced may not be all that the Court will eventually agree to review. Perhaps a goodly number of them have not yet been denied by the Court (denials from the first Conference will not be released until next Monday), and thus could be re-listed for consideration at future Conferences. No new grants are likely, however, before the orders that will be released on Tuesday, Oct. 11.

Among the most significant cases that the Justices considered in their private discussions on Monday, but did not act upon on Tuesday, were these:

* Two new cases seeking to reopen the issue of the constitutionality of placing religious displays on government property — a case from Utah on placing Christian crosses at the side of highways to mark the sites where state patrolmen died in the line of duty, and a case from Ohio on a judge’s posting of the Ten Commandments along with secular statements in a poster on his courtroom wall.

* A major new case on whether global corporations are immune to lawsuits in U.S. courts for allegedly taking part in or allowing torture or other human rights abuses in foreign countries — a significant issue under the centuries-old Alien Tort Statute.

* A plea to sort out how much privacy the Constitution protects in the contents of cellphones and other personal data devices that police take after arresting an individual and, in a separate case, a request to decide whether federal law bars users of cellphones from suing over what they consider to be the radiation hazard of using such devices.

* A test of whether Internet-based companies like Yahoo must pay royalties each time they download a song to a paying customer.

* A California case on the scope of local governments’ duty under a federal law to arrange their zoning laws to satisfy a church’s request for a site for an enlarged house of worship, when the church wants to build in a place not zoned for such uses.

* A case from Texas challenging prosecutors’ use of race as a reason to try to convince a jury to impose the death sentence on a black or Hispanic defendant.

* Three separate cases seeking new clarity in the long-standing controversy over states’ authority to impose income or other taxes on out-of-state companies that have no staff, office, or other facility inside the state, but have occasional commercial contacts with the state.

* Another round in the controversy, dating back to the earliest years of U.S. history, over New York State’s purchases of lands from the Oneida Indians, and then re-selling them for a considerable profit. The Court has issued three major rulings since 1974 on that dispute, but its end is not in sight.

The Court at one time had been scheduled to consider, at Monday’s Conference, three new cases on whether the Constitution’s Second Amendment protects a personal right to carry a gun outside the home, but the Justices had asked for further filings in all of the cases and they apparently were not yet ready for action. What may be the biggest controversies of the Term — over the constitutionality of the new health-care law, Arizona’s crackdown on undocumented aliens, and the constitutionality of using race in college admissions — were not ready for the opening Conference.

Among other actions the Court announced on Tuesday was the partial abandonment of a long-standing tradition. It has been the custom for the Court’s members to sit in public on all of the Mondays following a two-week oral argument session. No arguments were held on those days, but the Justices showed up on the bench to release orders in pending cases and to admit new lawyers to practice before the Court. In a news release Tuesday (found here), the Court said it would not sit on Monday, Oct. 17, after completing the October argument sitting, and apparently will not do so on that day in any future Term. It will continue, however, to sit in public on the other Mondays after argument sessions for the balance of the Term. The Court gave no explanation for the change.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.